AMERICAN HISTORICAL ASS'N v. NATIONAL ARCHIVES & RECORDS ADMIN.

The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

I. Introduction

The Court is presented with a dispute over the relationship between an
executive order issued by the President of the United States and a
statute passed by Congress. In particular, the Court is asked to
determine whether the President has overstepped the limitations on his
power by issuing an executive order that alters the terms of a statute.
Plaintiffs, research organizations, individual researchers, and a public
interest organization, all seek access to former President Ronald
Reagan's presidential records, which they claim are being improperly
withheld by the executive branch. At issue is Executive Order No. 13,233,
signed by President George W. Bush on November 1, 2001, which purports to
"further implement" the Presidential Records Act of 1978,
44 U.S.C. § 2201-2207 (1991). Plaintiffs would have this Court find
Executive Order No. 13,233 an impermissible exercise of the executive
power, necessarily enjoining its implementation. Plaintiffs originally
requested injunctive relief requiring Defendants National
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Archives and Records Administration and the Archivist to produce
records that had not been released to the public under the terms of
Executive Order. However, at this stage in the litigation, the only
documents that remain unavailable are 74 pages over which constitutional
privilege has been asserted.

Pending before the Court are Defendants' motion to dismiss all counts
of Plaintiffs' complaint, and Plaintiffs' motion for summary judgment on
one count of their complaint. In addition to the briefing filed by the
parties to this matter, the Court granted the Association of American
Publishers, and several other interested groups, leave to collectively
file an amicus brief. These documents, as well as several notices and
responses that the parties filed during the ongoing privilege review,
have been considered by the Court.

After an examination of the parties' motions, the briefs, and the
relevant law, the Court determines that Plaintiffs' suit is not
justiciable at this juncture. Plaintiffs have not shown that they have
standing to bring this suit, and the Court also finds that their claim is
not ripe.

II. Factual and Statutory Background

A. Historical Context

Prior to 1974, the wide array of materials generated during a
presidency were generally considered the property of that President when
his term ended, although those ownership rights might be limited somewhat
by the public interest in them as records of government activity. See
Nixon v. Administrator of General Services, 433 U.S. 425, 431
(1977); Nixon v. United States, 978 F.2d 1269, 1270 (D.C. Cir.
1992). In the midst of the Watergate investigation, however, Congress
passed the Presidential Recordings and Materials Act ("PRMA"), which
transferred control of President Richard Nixon's presidential records to
the Administrator of General
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Services (later changed to the "Archivist"), and directed the
Administrator to develop regulations providing for public access to the
materials. See 44 U.S.C. § 2111 note. The PRMA was upheld as
constitutional in Nixon v. Administrator of General Services,
433 U.S. 425 (1977). Although the Court in Nixon v. Administrator of
General Services held that there is a legal foundation for a former
president's claim to executive privilege surviving his tenure in office,
the Court also held that the former president's interest in keeping the
records private erodes over time. Id. at 449, 451.

B. Presidential Records Act

Several years later, Congress passed the Presidential Records Act of
1978 ("PRA"), which addressed this issue of public access to presidential
papers in a broader context. In keeping with the view that presidential
records are not personal property, the Act states that "[t]he United
States shall reserve and retain complete ownership, possession, and
control of Presidential records; and such records shall be administered
in accordance with this chapter." 44 U.S.C. § 2202. The Act confers on the
Archivist of the United States "responsibility for the custody, control,
and preservation of, and access to, the Presidential records" generated
during the outgoing President's term or terms. 44 U.S.C. § 2203(f)(1). It
further directs that the "Archivist shall have an affirmative duty to
make such records available to the public as rapidly and completely as
possible consistent with the provisions of this Act." Id. In
conjunction with this mandate, the PRA makes several provisions for the
restriction of access to Presidential records.*fn1
Page 4

First, prior to leaving office, a president can restrict access to
certain categories of information for up to 12 years. Id. §
2204(a)(1)-(6).*fn2 In relevant part, the Act allows a president
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to restrict access to "confidential communications requesting or
submitting advice, between the President and his advisers, or between
such advisors" for 12 years. Id. § 2204(a)(5).

Records not restricted for the 12-year period, shall be made available
by the Archivist to the public after five years, generally subject to the
conditions of the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552.*fn3 44 U.S.C. § 2204(b)(2)(A), 2204(c)(1). Each of these FOIA
exemptions may apply to presidential records indefinitely.*fn4

The one exception to this direction is that presidential records cannot
be withheld from members of the public based on FOIA exemption (b)(5).
44 U.S.C. § 2204(c)(1). In the ordinary FOIA context, the public is not
entitled to materials that fall under exemption (b)(5), "inter-agency or
intra-agency memorandums or letters which would not be available by law
to a party other than an agency in litigation with the agency."
5 U.S.C. § 552(b)(5). In the context of presidential records, however, the
(b)(5) exemption is inapplicable, so such materials are considered
records belonging to the National Archives, and must be "granted on
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nondiscriminatory terms" to members of the public.
44 U.S.C. § 2204(c)(1).

Third, the PRA states that "[n]othing in this Act shall be
construed to confirm, limit, or expand any constitutionally-based
privilege which may be available to an incumbent or former President."
Id. § 2204(c)(2).

Under the PRA, the Archivist must notify the former president "when the
disclosure of particular documents may adversely affect any rights and
privileges which the former President may have." Id. §
2206(3). The National Archives and Records Administration ("NARA") has
implemented this requirement by promulgating a regulation providing that
whenever the Archivist intends to make public any presidential record, he
must provide 30 days' notice to the former president to allow him, or his
designated representative, to assert any rights or privileges that would
foreclose access to the materials. 36 C.F.R. § 1270.46(a), (b), (d).
If the former president raises such a right or privilege intending to
preclude disclosure, "and the Archivist nevertheless determines that the
record in question should be disclosed in whole or in part, the Archivist
shall notify the former President or his representative," and "shall not
disclose [the records] for at least 30 calendar days . . ." Id.
§ 1270.46(c), (d). Copies of either notice to a former president of
impending disclosure must be provided to the incumbent president as well.
Id. § 1270.46(e).

C. Executive Order 12,667 ("Reagan Order")

President Ronald Reagan signed Executive Order 12,667 ("Reagan Order")
on January 18, 1989, "in order to establish policies and procedures
governing the assertion of Executive privilege by incumbent and former
Presidents in connection with the release of Presidential records" by
NARA under the PRA. Reagan Order, 54 Fed. Reg. 3403; see also
44 C.F.R. § 2204
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note. The Reagan Order specified three situations in which
presidential records could be withheld: national security, law
enforcement, and the executive deliberative process privilege, and gave
the incumbent president the authority to assert privilege over the
records of a former president. Id. §§ 1(g), 3.

When the Archivist notified an incumbent and former president of his
intent to open records, the Reagan Order required him to "identify any
specific materials, the disclosure of which he believes may raise a
substantial question of Executive privilege." Id. § 2(a).
After 30 days, the Archivist would be free to disclose the records,
"unless during that time period the Archivist [received] a claim of
Executive privilege by the incumbent or former President or the Archivist
has been instructed by the incumbent President or his designee to extend
the time period." Id. § 2(b). The Reagan Order provided that
both the incumbent and former presidents could assert executive
privilege, but that the Archivist would only be bound to accept the
privilege claim of an incumbent president. Id. §§ 3-4. The
Reagan Order required the Archivist to abide by an incumbent president or
his designee's direction as to whether to accept or deny a former
president's claim of privilege, unless ordered otherwise by a court.
Id. § 4.

The Reagan Order was revoked by Executive Order 13,233, ...

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